Opinion
HHDCV156060375S
06-13-2016
Jenelle Scott v. State of Connecticut Department of Transportation
UNPUBLISHED OPINION
CORRECTED MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#102)
Sheila A. Huddleston, Judge.
The plaintiff, Janelle Scott, brought this action in four counts against her former employer, the Connecticut Department of Transportation (department), alleging violations of federal and state antidiscrimination laws. The department has moved to dismiss all counts, asserting that the first and second counts are barred as untimely and the third and fourth counts are barred by sovereign immunity. For the reasons discussed below, the motion to dismiss is granted.
I
FACTS AND PROCEDURAL HISTORY
The following allegations in the plaintiff's complaint are accepted as true for purposes of this motion. In January 2007, the plaintiff was employed by the department as an engineer. In December 2009, and June 2010, the plaintiff filed sexual harassment complaints against her male supervisor. After she filed those complaints, her supervisor gave her a below average performance rating for " cooperation." She received a written warning based on comments she made during a meeting to discuss her below average performance rating. After these events, in June 2011, the plaintiff filed complaints with the Connecticut Commission on Human Rights and Opportunities (CHRO) and the United States Equal Employment Opportunities Commission (EEOC). While her complaints were pending, the plaintiff was discharged by the department on November 29, 2013. Represented by counsel, she amended her CHRO complaint to assert a claim for wrongful termination. The plaintiff received a release of jurisdiction right-to-sue letter from CHRO on June 25, 2014, and a release of jurisdiction right-to-sue letter from the EEOC on July 24, 2014. These factual allegations form the basis of the first two counts of her complaint. The first count alleges retaliation and wrongful termination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and the second count alleges wrongful termination in violation of the Connecticut Fair Employment Practices Act (CFEPA), General Statutes § 46a-60 et seq.
In the third count, the plaintiff alleges that the department denied her request for an accommodation under the federal Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., on September 25, 2013. She also alleges that the department subjected her to harassment on account of her disability in violation of the ADA.
In the fourth count, the plaintiff alleges that she was thirty-six years old and that the department favored older employees and discriminated against her on the basis of her age in violation of the federal Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq.
Before commencing this action, the plaintiff filed a civil action in the federal district court on October 15, 2014 (Scott v. Connecticut Department of Transportation, Docket No. 3:14-CV-01522-SRU). Her federal complaint had seven counts. The first, second, third, fourth, and sixth counts were asserted against the department, and the fifth and seventh counts were asserted against the plaintiff's former supervisor individually. Of the counts against the department, the first was brought under Title VII; the second, under the ADA; the third, under the ADEA; the fourth, under Title VII; and the sixth, a wrongful termination claim, under Title VII and 42 U.S.C. § § 1981 and 1983. The factual allegations underlying the federal court action were substantively similar to the allegations in this action.
On May 14, 2015, the district court, Underhill, J., dismissed the plaintiff's federal complaint in its entirety. The May 14, 2015 order and the transcript excerpt from the May 14, 2015 federal court hearing, read together, disclose that the federal court dismissed the plaintiff's second, third, and sixth counts (the ADA claim, the ADEA claim, and the wrongful termination claim brought under Title VII and 42 U.S.C. § 1983) on the ground of sovereign immunity. The court stated, however, that the plaintiff could refile those claims in state court. It dismissed the first, fourth, and fifth counts under federal law, but it allowed her to replead those claims in the federal action no later than June 14, 2015. It dismissed the seventh count, alleging intentional infliction of emotional distress claim against her former supervisor, with prejudice.
The plaintiff filed an amended complaint in federal court on June 15, 2015. In the three-count amended complaint, she asserted two Title VII claims against the department and a § 1983 claim against her supervisor. The plaintiff also brought this action, as described above, in this court. Although dated June 12, 2015, the writ, summons and complaint in this action were served on the department on June 15, 2015, and filed in this court on June 23, 2015.
II
DISCUSSION
A
Standard of Review
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). In ruling on a motion to dismiss, the court construes the facts alleged in the complaint in a manner most favorable to the nonmoving party. Cuozzo v. Orange, 315 Conn. 606, 614-15, 109 A.3d 903 (2015). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
" Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to [§ 10-30] may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." (Citation omitted; internal quotation marks omitted.) Cuozzo v. Orange, supra, 315 Conn. 615. " [I]f the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]." Id.
In this case, the court considers both the complaint itself and the supplementary documents from the federal court action submitted by both parties. The authenticity of the federal court documents is undisputed. The documents considered include: the original federal complaint dated and filed October 15, 2014, including the documents attached to it; the district court order dismissing that complaint, dated May 14, 2015; a transcript excerpt from the May 14, 2015 hearing on the motion to dismiss; and the amended complaint filed in the federal action on June 15, 2015.
B
The First and Second Counts
To be timely, a claim under Title VII must be filed within ninety days of the claimant's receipt of a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1); see also Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996). Similarly, under General Statutes § 46a-101(e), a plaintiff has ninety days from the receipt of a release of jurisdiction from the CHRO to bring a CFEPA action in the Superior Court. White v. Dept. of Children & Families, 136 Conn.App. 759, 766, 51 A.3d 1116, cert. denied, 307 Conn. 906, 307 Conn. 905, 53 A.3d 221 (2012).
The department argues that this court lacks subject matter jurisdiction over the plaintiff's Title VII and CFEPA claims because the plaintiff failed to file her claims within ninety days of the right-to-sue letters she received from the CHRO and the EEOC. In response, the plaintiff argues that: (1) the district court allowed her to file her claims without prejudice by June 14, 2015; (2) filing her action in this court by June 12, 2015, complied with 28 U.S.C. § 1367(d); and (3) filing her complaint in federal court equitably tolled the applicable ninety day limitation periods.
1
Plaintiff's First and Second Arguments
The plaintiff's first argument is not persuasive. The district court's May 14, 2015 order distinguished between counts that the plaintiff could refile in state court and counts that she could replead in federal court. It dismissed her ADA, ADEA, and § 1983 claims as barred in federal court by sovereign immunity, but left it to the state courts to decide whether those claims were similarly barred by sovereign immunity in state court. It allowed her to replead her first, fourth, and fifth counts in federal court prior to June 14, 2015. There is no indication that the district court's May 14, 2015 order was intended to provide a date by which the plaintiff could file the claims dismissed on sovereign immunity grounds in state court. Moreover, the district court's order could not have permitted the plaintiff to " refile" a CFEPA claim in state court because her original federal complaint did not allege a CFEPA claim.
The plaintiff's second argument, that 28 U.S.C. § 1367(d) saves her first two counts, is similarly unpersuasive. That section tolls any applicable statutes of limitations for state law claims when such claims are initially brought in a federal action, but thereafter dismissed. " When a federal district court has original jurisdiction over a civil cause of action, [28 U.S.C.] § 1367 determines whether it may exercise supplemental jurisdiction over other claims that do not independently come within its jurisdiction, but that form part of the same Article III 'case or controversy.' " Jinks v. Richland County, S C., 538 U.S. 456, 458, 123 S.Ct. 1667, 155 L.Ed.2d 631 (2003); see 28 U.S.C. § 1367(a). " Subsection (b) [of 28 U.S.C. § 1367] places limits on supplemental jurisdiction when the district court's original jurisdiction is based only on diversity of citizenship jurisdiction under 28 U.S.C. § 1332 . . . Subsection (c) allows district courts to decline to exercise supplemental jurisdiction in certain situations, such as when a 'claim raises a novel or complex issue of State law.'" Raygor v. Regents of University of Minnesota, 534 U.S. 533, 540, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002). " Thus, some claims asserted under § 1367(a) will be dismissed because the district court declines to exercise jurisdiction over them and, if they are to be pursued, must be re-filed in state court. To prevent the limitations period on such supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court, § 1367(d) provides a tolling rule that must be applied by state courts: 'The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless state law provides for a longer tolling period.'" Jinks v. Richland County, S.C., supra, 538 U.S. 459, 123 S.Ct. 1667, 155 L.Ed.2d 631.
Because § 1367(d) tolls the applicable statute of limitations for supplemental state law claims, the plaintiff cannot rely on it to save her federal Title VII claim. Nor can § 1367(d) toll the applicable statute of limitations for a state law claim that was not filed in federal court in the first place. See Barnett v. Connecticut Light & Power Co., 967 F.Supp.2d 593, 599-600 (D.Conn. 2013) (rejecting § 1367 tolling for claim that had not been filed in federal court), aff'd, 580 Fed.Appx. 30 (2d Cir. 2014), cert. denied, 135 S.Ct. 2059, 191 L.Ed.2d 958 (2015). At oral argument, the plaintiff's counsel conceded that the CFEPA claim was not asserted in the original federal complaint. Thus, § 1367(d) cannot save the plaintiff's CFEPA claim.
2
Plaintiff's Third Argument
The plaintiff's third argument in opposition to the department's motion to dismiss her Title VII and CFEPA counts requires the court to determine whether the ninety day requirements prescribed by 42 U.S.C. § 2000e-5(f)(1) and § 46a-101(e) are jurisdictional in character. If they are not jurisdictional, then the court must consider the plaintiff's claim that the time limits should be subject to equitable tolling.
" The United States Supreme Court has held that 'filing a timely charge of discrimination with the [Equal Employment Opportunity Commission] is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.' Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)." Hinde v. Specialized Education of Connecticut, Inc., supra, 147 Conn.App. 743. " When presented with the issue of extending the Zipes holding to the right to sue letter requirement, every federal circuit court has decided that that procedural requirement is a precondition subject to equitable tolling, estoppel and waiver." Id., 744; see also South v. Saab Cars USA, Inc., 28 F.3d 9, 11 (2d Cir. 1994) (" This court has held that the 90-day rule can be equitably tolled in certain situations.") Accordingly, the ninety day time requirement prescribed by 42 U.S.C. § 2000e-5(f)(1), contrary to the department's apparent suggestion, is not a jurisdictional prerequisite.
That conclusion, however, does not address whether the ninety day requirement contained in § 46a-101(e) poses a jurisdictional bar to late-filed claims. For that assessment, this court turns to relevant Connecticut precedent and well established principles of statutory interpretation. " The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply . . . In seeking to determine [the] meaning [of a statute], General Statutes § 1-2z directs [courts] to first consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, [courts] also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Stec v. Raymark Industries, Inc., 299 Conn. 346, 358, 10 A.3d 1 (2010); accord Commission on Human Rights & Opportunities v. Savin Rock Condominium Assn., 273 Conn. 373, 379, 870 A.2d 457 (2005).
No appellate decision has squarely addressed whether the ninety day time limit in § 46a-101(e) is intended to be a limitation on the court's subject matter jurisdiction. In the absence of controlling precedent, the court applies well established standards for statutory interpretation. As directed by § 1-2z, the court first considers the language of the statute itself and its relationship to other statutes.
Section 46a-101(e) provides that " [a]ny action brought by the complainant in accordance with section 46a-100 shall be brought within ninety days of the receipt of the release from the commission." Although use of the phrase " shall be brought" is consistent with the notion of subject matter jurisdiction, our appellate courts have addressed similar language within the context of related statutes existing in the same antidiscrimination statutory scheme.
In Angelsea Prods. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 683, 674 A.2d 1300 (1996), the court determined that the statutory deadlines in General Statutes § § 46a-83(b) and 46a-84(b), which then required the CHRO to hold a hearing within ninety days and to issue a ruling within nine months from the filing of the complaint, were mandatory and that failing to abide by those deadlines stripped the CHRO of jurisdiction. Id., 700. Notably, the court did not decide whether the deadlines implicated subject matter jurisdiction, noting that " [t]he parties do not specify whether their reserved questions are in personal or subject matter jurisdictional terms. As stated above, however, resolution of this case does not require consideration of that issue." Id., 700 n.13.
The specific holding of Angelsea Productions was legislatively overruled almost immediately. See Public Acts 1996, No. 96-241, and Public Acts 1998, No. 98-245; see also Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 281-82, 777 A.2d 645, on appeal after remand, 67 Conn.App. 316, 786 A.2d 1283 (2001).
In Williams, the court addressed whether the 180 day time requirement for filing a complaint of employment discrimination with the CHRO pursuant to General Statutes § 46a-82(e) (now found in § 46a-82[f]] was subject matter jurisdictional. The court held that " the 180 day time requirement for filing a discrimination petition pursuant to § 46a-82(e) is not jurisdictional, but rather, is subject to waiver and equitable tolling." (Emphasis added; footnote omitted.) Id., 264. In so holding, the court noted that, at times, courts have " confused the concepts of mandatory language [of filing requirements] and subject matter jurisdiction." Id., 268. Reviewing relevant precedents, the court noted that one category of cases separated the concepts of mandatory language and subject matter jurisdiction, " implicitly hold[ing] that a conclusion that a time limit is mandatory does not necessarily mean that it is also subject matter jurisdictional, because the notions of waiver and consent are fundamentally inconsistent with the notion of subject matter jurisdiction." Id., 269. The court noted that mandatory language in a statute may indicate a legislative intent to make a time requirement jurisdictional, but " such language alone does not overcome the strong presumption of jurisdiction, nor does such language alone prove strong legislative intent to create a jurisdictional bar." Id., 269-70. " In the absence of [a strong legislative intent to have a time limitation be jurisdictional], mandatory time limitations must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties. Such time limitations, do not, however, implicate the subject matter jurisdiction of the agency or the court." (Emphasis added.) Id., 270.
The Williams court continued: " [I]f a time requirement is deemed to be mandatory, it must be complied with, absent such factors as consent, waiver or equitable tolling. Thus, a complaint that is not filed within the mandatory time requirement is dismissible unless waiver, consent, or some other compelling equitable tolling doctrine applies. We conclude that the time limit of § 46a-82(e) is mandatory, and thus the commission could properly dismiss the plaintiff's complaint if it was not filed within 180 days of the alleged act of discrimination." (Emphasis altered.) Id., 284. The court remanded the case to the Appellate Court " for a specific determination of the various issues raised in the plaintiff's appeal, namely, whether the untimeliness of the plaintiff's complaint should have been excused on the basis of waiver or equitable tolling." Id., 289-90; see also Williams v. Commission on Human Rights & Opportunities, 67 Conn.App. 316, 319, 786 A.2d 1283 (2001) (decision on remand).
Williams establishes that time limitations contained in our antidiscrimination statutes do not necessarily implicate subject matter jurisdiction. Despite the Williams decision, some trial courts have held that the ninety day limit in § 46a-101(e) is jurisdictional. See, e.g., Roma v. Urgent Care of Brookfield, LLC, Superior Court, judicial district of Danbury, Docket No. CV-12-6010727-S, (January 27, 2014, Doherty, J.); Spignolio v. Stark Carpet Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-13-6019388-S, (December 19, 2013, Truglia, Jr., J.); Lloyd v. Connection, Inc., Superior Court, judicial district of New Haven, Docket No. CV-11-6023491-S, (December 21, 2011, Young, J.). None of these decisions, however, discuss the Williams decision.
By contrast, in Sirica v. Connecticut Water Co., Superior Court, judicial district of Waterbury, Docket No. CV-14-6024 124-S (February 13, 2015, Roraback, J.) (59 Conn.L.Rptr. 735, ), the court expressly concluded that Williams required a finding that the ninety day time limitation prescribed by § 46a-101(e) was not subject matter jurisdictional and, thus, was subject to waiver and equitable tolling. See also Kotec v. Japanese Educational Institute of N.Y., 321 F.Supp.2d 428, 431 (D.Conn. 2004) (implicitly recognizing that equitable principles can suspend CFEPA time limitations by granting motion to dismiss CFEPA claim based on merits of equitable estoppel argument). This court agrees with the thoughtful analysis in Sirica and concludes that, in light of Williams, § 46a-101(e) should not be construed as a jurisdictional bar, but should be construed as a mandatory requirement that is subject to consent, waiver, and equitable tolling. See Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 264.
3
Equitable Tolling of Title VII and CFEPA Claims
Nothing in this case suggests that the department has consented to an extension of the ninety day filing requirement or has otherwise consented to the court's exercise of jurisdiction over the Title VII and CFEPA counts. The plaintiff argues that the court should deny the motion to dismiss on equitable grounds because she did not sleep on her rights, but rather pursued her claims on a timely basis in the wrong forum. The court disagrees.
Although in some instances courts have allowed equitable tolling where a plaintiff has brought an action first in the wrong court; see Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965); that rule has not generally been applied in Title VII cases. " The general rule is that [c]ourts have taken a uniformly narrow view of equitable exceptions of Title VII limitations periods." (Internal quotation marks omitted.) Williams v. Commission on Human Rights & Opportunities, supra, 67 Conn.App. 329. " Usually, in employment discrimination cases, time limits will not be tolled absent some behavior of the employer designed to delay the filing of the complaint or fraud." Id. Indeed, " [t]here is a strong tendency not to apply the doctrine of equitable tolling when a party is represented by an attorney." Id., 328.
Moreover, Connecticut courts " review federal precedent concerning employment discrimination for guidance in enforcing our own anti-discrimination statutes." Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996); accord Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 278. " The Second Circuit's case law on equitable tolling makes clear . . . that for equitable tolling to apply, the employer must prevent the employee in some extraordinary way from exercising her rights, or the employee must be actively misled by his employer and that conduct must be responsible for making the employee unaware of her [statutory] rights." (Citations omitted.) Krish v. Connecticut Ear, Nose & Throat, Sinus & Allergy Specialists, P. C., 607 F.Supp.2d 324, 329 (D.Conn. 2009).
Here, there is no dispute that the plaintiff was represented by counsel when she amended her administrative complaint and when she initially filed her claims in federal court. There is no allegation that the department engaged in any conduct that prevented the plaintiff from exercising her rights or misled the plaintiff into not knowing her statutory rights. The plaintiff's sole argument is that her diligent filing in federal court constitutes an extraordinary circumstance sufficient to equitably toll the requisite filing requirements. This court is not persuaded. Where the plaintiff had the benefit of counsel, was aware of viable claims, and absent allegations that her employer engaged in conduct designed to delay the plaintiff's filing of her complaint, the doctrine of equitable tolling cannot extend the ninety day time requirements contained in 42 U.S.C. § 2000e-5(f)(1) and § 46a-101(e).
Although the court concludes that there is no equitable basis for tolling the Title VII claim, it further observes that even if circumstances warranted the tolling of the plaintiff's claim while her federal case was pending, equitable tolling would not save her Title VII under the principles applied by the federal courts. " Principles of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped." (Internal quotation marks omitted.) Harper v. Ercole, 648 F.3d 132, 139 (2d Cir. 2011). The plaintiff received her right-to-sue letter from the EEOC on July 24, 2014, and filed her federal action eighty-four days later, on October 15, 2014. Her Title VII claims were therefore timely filed in federal court, but with only six days to spare. Her federal action was dismissed on May 14, 2015. To benefit from equitable tolling, she would have been required to refile her claim in state court within six days, or by May 20, 2015. She commenced this action on June 15, 2015, thirty-three days after the federal court's dismissal of her claims. Accordingly, even if circumstances warranted equitable tolling during the period her federal action was pending, which they do not, her Title VII claim in this action would still be untimely.
The case against equitable tolling of the plaintiff's CFEPA claim is even more compelling. The plaintiff received her right-to-sue letter from the CHRO on June 25, 2014. She was required by § 46a-101(e) to commence an action within ninety days, or by September 23, 2014. She did not commence her federal action until October 15, 2014, after her time limit for a CFEPA claim had already run, and she did not file a CFEPA claim in the federal action. When she first asserted her CFEPA claim by service of the complaint in this action on June 15, 2015, nearly a year had passed since her receipt of the right-to-sue letter. The federal action cannot reasonably be deemed a reason to toll a claim that was not asserted in it and that was already untimely when the federal action was filed.
For the reasons discussed above, the plaintiff failed to file this action within the mandatory time limits of Title VII and § 46a-101(e), and she has failed to show that she is entitled to equitable tolling of those time limits. The first and second counts are therefore dismissed.
C
The Third and Fourth Counts
As to the third and fourth counts, the department argues that the court lacks subject matter jurisdiction because sovereign immunity bars the plaintiff's ADEA and ADA claims for money damages. Specifically, the department argues that the state has not waived its immunity from suit and Congress has not abrogated the state's sovereign immunity. In response, the plaintiff argues that the state is not entitled to sovereign immunity where a plaintiff seeks only declaratory or injunctive relief and where a state officer or officers acted in excess of statutory authority. Although not specifically requested in her complaint, the plaintiff argues that she is seeking only declaratory and injunctive relief and that state officers acted in excess of statutory authority when she was terminated in retaliation for engaging in protected activity.
" The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law." C.R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007). " The doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . ." (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003).
In Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), the United States Supreme Court held that Congress had not validly abrogated states' sovereign immunity from suit under the ADEA. In Marasco v. Connecticut Regional Vocational-Technical School System, 153 Conn.App. 146, 100 A.3d 930 (2014), cert. denied, 316 Conn. 901, 111 A.3d 469 (2015), our Appellate Court concluded that Kimel bars suits against the state under the ADEA.
Similarly, in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 374, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), the United States Supreme Court held that in the ADA, Congress did not validly abrogate the states' sovereign immunity for employment discrimination claims. Absent a valid abrogation of sovereign immunity by Congress, the state's consent to suit under the ADA is required. The plaintiff has not cited, and this court has not found, a state statute that either expressly or by force of a necessary implication waives the state's sovereign immunity from suit for ADA employment claims seeking money damages. Without such a statutory waiver, ADA claims for money damages against the state in employment cases are barred by sovereign immunity.
" It has long been recognized that [w]hen a plaintiff brings an action for money damages against the state, he must proceed through the office of the claims commissioner pursuant to chapter 53 of the General Statutes, § § 4-141 through 4-165. Otherwise, the action must be dismissed for lack of subject matter jurisdiction under the doctrine of sovereign immunity." (Internal quotation marks omitted.) Tuchman v. State, 89 Conn.App. 745, 752, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005). " Our Supreme Court has held that to bypass the doctrine of sovereign immunity, a plaintiff must demonstrate that '(1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute.'" Marasco v. Connecticut Regional Vocational-Technical School System, 153 Conn.App. 146, 156, 100 A.3d 930 (2014), cert. denied, 316 Conn. 901, 111 A.3d 469 (2015), quoting Lyon v. Jones, 291 Conn. 384, 397, 968 A.2d 416 (2009).
The plaintiff attempts to bypass sovereign immunity for her third and fourth counts by arguing that she is seeking only declaratory or injunctive relief. Her complaint contradicts this argument. Her prayer for relief requests: " (1) money damages; (2) reimbursement of the cost associated with bringing of the instant action; (3) interest on any judgment rendered pursuant to the instant action; [and] (4) such other relief the court, in its sound discretion, deems just, fair, and proper." Nowhere in her complaint does she request declaratory or injunctive relief.
The plaintiff argues that she is willing to replead her complaint in order to clarify that she is requesting only injunctive or declaratory relief. That argument is unavailing. This court must address the department's motion to dismiss the plaintiff's present complaint. See, e.g., F.D.I.C. v. Peabody, N.E., Inc., 239 Conn. 93, 99-100, 680 A.2d 1321 (1996) (once lack of subject matter jurisdiction is raised, court must scrutinize initial complaint, and if court is without jurisdiction, court is without jurisdiction to allow re-pleading). In this case, the complaint does not allege that a state officer against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute. The prayer for relief makes it clear that the plaintiff is seeking money damages based upon alleged violations of the ADA and ADEA. Her claims are therefore barred by sovereign immunity. Accordingly, the department's motion to dismiss the third and fourth counts based on lack of subject matter jurisdiction is granted.
III
CONCLUSION
For the foregoing reasons, the department's motion to dismiss is granted in its entirety.